Jharkhand High Court
Suresh Mahto @ Prakash Mahto vs The State Of Jharkhand on 22 October, 2024
Author: Ananda Sen
Bench: Ananda Sen
Cr. Appeal (D.B.) No. 1006 of 2017
.........
(Against the judgment of conviction dated 25.04.2017 and order of
sentence dated 28.04.2017 passed by learned Additional Sessions
Judge-III, Hazaribag in Sessions Trial No.438 of 2014).
.........
Suresh Mahto @ Prakash Mahto, S/o Mohan Mahto, R/o Village- Kurra
Karma Tongri, P.O. & P.S.- Giddi, District- Hazaribag ..... Appellant
Versus
The State of Jharkhand .... Respondent
.........
For the Appellant : Ms. Vani Kumari, Advocate
Ms. Malsi Pathak, Advocate
For the State : Mr. Vishwanath Roy, Spl. Public Prosecutor
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PRESENT
Sri Ananda Sen, J.
Sri Gautam Kumar Choudhary, J.
JUDGMENT
CAV On 16.10.2024 Pronounced On 22 /10/2024
Per Ananda Sen, J.:
The instant criminal appeal is directed against the conviction of
the sole appellant under Section 302 of the Indian Penal Code vide
judgment of conviction dated 25.04.2017 and order of sentence dated
28.04.2017, whereby he has been sentenced to undergo rigorous
imprisonment for life with fine of Rs.25,000/-.
2. Challenging the judgment, learned counsel appearing on behalf
of the appellant submitted that prosecution case as put forth by the
prosecution, is unbelievable. As per the evidence of the Investigating
Officer, the appellant also sustained severe injuries, but this injury
has not been explained by the prosecution, which would suggest that
the fact upon with the prosecution has based its case is incorrect. She
further stated that when the Trial Court has specifically arrived at a
finding that the prosecution has failed to prove the charge under
Section 304 B of IPC then, the natural consequence would be that the
prosecution has failed to prove the genesis of the occurrence also, as
it was the prosecution case that due to demand of dowry there was
torture and the deceased was done to death. When the allegation of
demand of dowry falls flat, then the prosecution should have come
with the motive behind the crime, as admittedly there is no eye
witness to the said occurrence. It is also argued that entire conviction
is based on the statement of P.W.-1 as it is a fact that the dead body
was found in the house of this appellant, but if the statement of P.W.-
1 is scrutinized properly, it would be clear that she is not an eye
witness. It is clear from the evidence of P.W.-1 that she met this
deceased in the morning, but there is nothing in her evidence to
suggest that the deceased ever complained about this appellant. On
this ground, she prays that this appeal be allowed.
3. Learned counsel for the State argued that admittedly the
deceased is the wife of this appellant. Admittedly the death had
taken place with seven years of marriage and there was demand of
dowry and the cause of death is homicidal, but he admits that the
Trial Court acquitted the appellant and other accused persons from
charge under Section 304B of IPC and is no appeal filed by the State
or informant. He argued that there was an alternative charge under
Section 302 of IPC and admittedly, the dead body was found in the
house of this appellant. The appellant has not disclosed as to how the
deceased died. He submitted that through evidence it has been
substantiated that the relationship of the deceased and the appellant
was not cordial and there was demand of dowry, but he admitted
that there is nothing on the record, which would explain the injuries
on the appellant.
4. The prosecution case is based on the written application of Jodha
Mahto (P.W.-4). He stated that on 14.05.2014, the deceased was
married with this appellant. At the time of marriage Rs.1,50,000/-
cash and one motorcycle was given to his Son-in-law. The appellant
thereafter started demanding Rs.2 lakh from him for construction of a
house and stated that if this amount is not given, he would kill his
daughter. On 10.06.2014, he received an information that the
appellants and others were assaulting his daughter. When he reached
the matrimonial house of his daughter, he found his daughter dead
and there was incised injuries on her face and an axe and sickle were
also found beside her.
5. On the aforesaid written application, Giddi P.S. Case No.26 of
2014 was registered under Sections 304B/34 of the Indian Penal
Code. The police after investigation filed chargesheet against the
appellant under Sections 302/34 of the Indian Penal Code.
6. Thereafter the Court took cognizance and committed the case to
the Court of Sessions. As the appellant pleaded not guilty, charge
was framed under Section 302/304B of IPC and he was put on trial.
Seven witnesses have been examined in this case, who are as
follows:-
(i) P.W.-1 Ranjeeta Kumari
(ii) P.W.-2 Ajeet Kumar Mahto
(iii) P.W.-3 Rukka Devi
(iv) P.W.-4 Jodha Mahto, informant of this case
(v) P.W.-5 Shyamdeo Uraon, Investigating Officer
(vi) P.W.-6 Dr. Angraj Subhash Chandra
(vii)P.W.-7 Budhwa Uraon
7. The following documents and material objects were also
exhibited by the prosecution:-
Exhibit-1 Signature of P.W.4 on written application
Exhibit-2 Seizure list
Exhibit- 3 Endorsement over written application
Exhibit-4 and 4/1 FSL Reports
Exhibit-5 Postmortem report
Exhibit-6 Letter dated 06.01.2017.
The Trial Court after completion of the prosecution evidence
examined this appellant under Section 313 of Cr.P.C. and after
hearing the parties, convicted the appellant under section 302 of IPC
and sentence as aforesaid.
8. The conviction in this case is under Section 302 of IPC and not
under Section 304B of IPC. In fact, the Trial Court has acquitted the
appellant and others under Section 304B of IPC. The Trial Court held
that the murder has been committed by this appellant and the same
was unrelated to any demand for dowry and harassment. This
finding and the acquittal under Section 304B of IPC, by the Trial
Court, has not been challenged either by the State or by the
informant.
9. From the oral evidence led by the parties, we find that none is
the eye witness. Admittedly, the death has occurred in the
matrimonial home. The Investigating Officer has found the dead
body in the house of this appellant and all the prosecution witnesses,
saw the dead body and has specifically stated that the dead body was
found in the house of this appellant and the same was with incised
wound. Thus, the prosecution has proved the place of occurrence
which is the house of this appellant.
10. The prosecution in this case through P.W.-6, the Doctor has
proved that the death of the deceased is homicidal. The post-mortem
report is Exhibit-5. The Doctor found the following injuries:-
"(I)Incised injury of cheek left side size 5"x 2"x 3"
(II)Incised injury of chin size 5"x 2"x 3" with fracture of mandible bone
left.
(III) Incised injury of breast right side size 2"x 1" x 1"
Though, we find that defence has taken a plea that there is some
discrepancy in the postmortem and the entries made therein, but the
same is not of much relevance. It is only the date which was wrongly
mentioned and has been corrected by the Doctor and he has
explained the same. From the postmortem report, we find three
incised injuries on the vial part of the body thus, the death is
homicidal.
11. So far as the involvement of this appellant is concerned, P.W.-1 is
Ranjeeta Kumari, who is the niece of this appellant. She stated that
she meet the deceased in the morning. She went with this deceased to
take bath. When a phone call came from the father of the deceased in
the mobile of Vikash Mahto, the deceased took the telephone and
went to her house and this witness also returned to her house,
thereafter she does not know what had happened. At about 1.30, she
went to the house of this appellant and saw the dead body of the
deceased lying in a cot in the house of the appellant and there was
injury on her face and neck and an axe and sickle was lying there
containing blood stains and the appellant was also lying in another
room in a pool of blood. She stated that she had no knowledge as to
how the deceased died.
P.W-2 is the brother of the deceased, P.W.-3 is the mother of the
deceased and P.W.-4 is the informant, father of the deceased. They
stated that after the marriage there was persistent demand of dowry.
Because of non-fulfillment of dowry, she was tortured. P.W.-2 stated
that on 10.06.2014, his father received a call and was asked to come to
the matrimonial home of the deceased. When he reached there, he
saw the deceased dead in the house of this appellant. This witness
further stated that the deceased had informed him that she was being
tortured and assaulted for non-fulfillment of dowry. He admitted
that the appellant was also injured.
P.W.-3 and P.W.-4 have stated on the same line. P.W.-4 also
stated that this appellant was injured and admitted in the hospital.
Investigating Officer is P.W.-5, he also stated that the appellant
was badly injured and there was injury on his head and he was
hospitalized. He proved the place of occurrence also.
12. From the evidence led by the prosecution witnesses, the fact has
been established is that the deceased died a homicidal death and
there is no eye witness to the occurrence and this appellant was also
found lying injured in a pool of blood with head injuries. It is also
admitted that this appellant was admitted in hospital where he was
treated. The prosecution has miserably failed to explain this injury
upon the accused. The injury is not superficial, which is evident from
the testimony of the Investigating Officer, the father of the deceased
P.W.-4 and also from P.W.-1 and other witnesses, who stated that the
appellant was lying in pool of blood and was also admitted in the
hospital and there was head injury.
13. In a case, where the accused sustained major injuries, which are
not superficial, it is for the prosecution to explain the injuries on the
accused. Non-explanation of the injuries sustained by the accused at
the time of occurrence or in course of an altercation is very important
circumstance. Non- explanation of the injuries can draw an inference
that the prosecution has suppressed the actual genesis of the offence.
It can be presumed that prosecution case has not been presented
properly before the Court by the prosecution. Further, in these type
of cases where major part of the prosecution witnesses, i.e. the father
of the deceased, mother of the deceased and brother of the deceased
are in inimical term with the appellant, the omission on part of the
prosecution to explain the injuries on the appellant/ accused is of
much significance.
14. The Hon'ble Supreme Court in the case of Nand Lal and Others
vs. State of Chhattisgarh, reported in (2023) 10 SCC 470 has held
when the injuries on the accused is not properly explained, it would
be difficult for the Court to rely on the evidence of the P.Ws and also
an adverse interference can be drawn about the prosecution case and
the correctness of the same. It is necessary to quote paras 25 to 27,
which reads as under:-
25. We will first consider the issue with regard to non- explanation of
injuries sustained by accused No. 11 Naresh Kumar. In the case of Lakshmi
Singh and Others v. State of Bihar which case also arose out of a conviction
under Section 302 read with Section 149 of the IPC, this Court had an
occasion to consider the issue of non-explanation of (1976) 4 SCC 394
injuries sustained by the accused. This Court, after referring to the earlier
judgments on the issue, observed thus:
"12. .......It seems to us that in a murder case, the non-explanation of
the injuries sustained by the accused at about the time of the occurrence or
in the course of altercation is a very important circumstance from which the
court can draw the following inferences:
"(1) that the prosecution has suppressed the genesis and the origin of
the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on
the person of the accused are lying on a most material point and therefore
their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries
on the person of the accused it is rendered probable so as to throw doubt on
the prosecution case."
The omission on the part of the prosecution to explain the injuries on the
person of the accused assumes much greater importance where the evidence
consists of interested or inimical witnesses or where the defence gives a
version which competes in probability with that of the prosecution one. In
the instant case, when it is held, as it must be, that the appellant Dasrath
Singh received serious injuries which have not been explained by the
prosecution, then it will be difficult for the court to rely on the evidence of
PWs 1 to 4 and 6, more particularly, when some of these witnesses have lied
by stating that they did not see any injuries on the person of the accused.
Thus neither the Sessions Judge nor the High Court appears to have given
due consideration to this important lacuna or infirmity appearing in the
prosecution case. We must hasten to add that as held by this Court in State
of Gujarat v. Bai Fatima there may be cases where the non-explanation of
the injuries by the prosecution may not affect the prosecution case. This
principle would obviously apply to cases where the injuries sustained by the
accused are minor and superficial or where the evidence is so clear and
cogent, so independent and disinterested, so probable, consistent and
creditworthy, that it far outweighs the effect of the omission on the part of
the prosecution to explain the injuries. The present, however, is certainly
not such a case, and the High Court was, therefore, in error in brushing
aside this serious infirmity in the prosecution case on unconvincing
premises."
26. A similar view with regard to non-explanation of injuries has been taken
by this Court in the cases of State of Rajasthan v. Madho and
Another2, State of M.P. v. Mishrilal (Dead) and
Others3 and Nagarathinam and Others v. State .
27. Undisputedly, in the present case, the injuries sustained by accused No.
11 Naresh Kumar cannot be considered to be minor or superficial. The
witnesses are also interested witnesses, inasmuch as they are close relatives
of the deceased. That there was previous enmity between the two families, on
account of election of Sarpanch, has come on record. As observed by this
Court in the case of Ramashish Ray v. Jagdish Singh , previous enmity is a
double-edged sword. On one hand, it can provide motive and on the other
hand, the possibility of false implication cannot be ruled out."
In the aforesaid case, the Hon'ble Supreme Court gave benefit of
doubt to the accused, as the injuries were not explained.
15. In this case, we find that Forensic Science Report of the report of
blood sample taken from the axe and sickle. Both these instruments
were found near to the dead body. As per the report the blood group
found in the said instrument are of group B and human blood, but in
the instant case there was a dead body of the deceased and the
presence of the injured appellant, lying in a pool of blood. The
prosecution has not put forth any material to suggest that blood
group in the weapon matches with blood group of which person.
Further, the prosecution has failed to explain the injuries on the
accused. Even the Trial Court has not taken note of the injuries which
the appellant had sustained.
16. Admittedly, there is no eye witness to the occurrence and the
Trial Court has disbelieved the prosecution version of demand of
dowry soon before death or there was any assault from the deceased
on account of dowry. This finding is unchallenged. Thus, the motive
of commission of murder has been disbelieved by the Trial Court. On
this background when there is no eye witness and there is no other
motive to commit murder of the deceased by the appellant, just
because deceased died in the house of this appellant where several
other persons were also admittedly present and the appellant just
because is the husband, he could not have been convicted for offence
under Section 302 of IPC. Further, adverse inference is drawn against
the prosecution has failed to explain the injury of the appellant. Thus,
benefit of doubt should go in favour of the appellant.
17. The judgment of conviction dated 25.04.2017 and order of
sentence dated 28.04.2017 passed by learned Additional Sessions
Judge-III, Hazaribag in Sessions Trial No.438 of 2014 is hereby set
aside.
18. Accordingly, the instant Criminal Appeal is allowed.
19. We had requested Ms. Vani Kumari, the learned counsel and had
appointed her as learned Amicus Curiae to assist this Court. This
appeal has been very nicely argued and presented by her.
Considering her assistance, we directed the Jharkhand High Court
Legal Services Committee to pay remuneration of Rs.7,500/- to Ms.
Vani Kumar, learned Amicus Curiae.
20. The appellant who is in custody be released forthwith if not
required in any other case.
21. Interlocutory application(s), if any, also stands disposed of.
22. Let the Trial Court record be transmitted to the Court concerned
along with a copy of this judgment.
(Ananda Sen, J.)
Gautam Kumar Choudhary, J: I agree.
(Gautam Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated 22/10/2024
AFR /R.S./ Cp 03.
